The Supreme Court Docket

by Roger Alford

With the Supreme Court’s new term now underway I was interested in exploring the cases on the docket relevant to our field. So far it appears that the docket is remarkably thin in terms of cases that relate to foreign relations, international law and/or comparative constitutionalism.

Of course, it is possible and even likely that more interesting IL/IR cases will be added to the docket. It also is possible that other cases now on the docket may prove surprisingly important for our purposes. One such case is Philip Morris v. Williams, which could provide an opportunity for constitutional comparativism in the due process punitive damages context. But I rather doubt the justices who favor comparativism will do so in that case.

At least for now, here are the ones to keep an eye on in the coming months:

I. Massachusetts v. EPA

Question presented:

1. Whether the Administrator of the Environmental Protection Agency has authority to regulate air pollutants associated with climate change under section 202(a)(1) of the Clean Air Act, 42 U.S.C. 7521(a)(1).

2. Whether the EPA Administrator may decline to issue emission standards for motor vehicles based on policy considerations not enumerated in section 202(a)(1) of the Clean Air Act.

Comment: So far this case about global warming is the most interesting one to watch. The case in some respects pits reliance on foreign policy concerns against environmental concerns. Various parties petitioned the EPA to set regulatory standards for certain pollutants emitted by motor vehicles. The EPA declined to regulate these pollutants. In part, the EPA relied on foreign policy considerations to refuse to regulate greenhouse gases. EPA argued that “[u]nilateral EPA regulation of motor vehicle GHG emissions could … weaken U.S. efforts to persuade key developing countries to reduce the GHG intensity of their economies.” It concluded that regulation of pollutants associated with climate change “raises important foreign policy issues” which it was “the President’s prerogative” to address. Interestingly, Madeleine Albright has filed an amicus brief (written by Kathleen Sullivan) (2006 WL 2570988) arguing that “The purpose of this brief is to alert the Court to the disturbing implications of one of the government’s claims in this case: that the EPA Administrator may decline to regulate greenhouse gases under the Clean Air Act, even if he has the requisite regulatory authority, based in part on foreign policy considerations unrelated to the statutory criteria established by Congress.”

Whether the Court of Appeals erred in reversing the decision of the Board of Immigration Appeals, which held that Respondent is barred from eligibility for the relief of withholding of deportation by operation of the “serious nonpolitical crime” exception of the Immigration and Nationality Act.

Comment: The key issue in this case is whether a drug possession offense that is a felony under state law, but would be a misdemeanor under federal law, is an illicit trafficking “aggravated felony” within the meaning of the Immigration and Nationality Act. This case is essentially one of statutory construction regarding the aggravated felony rule under the INA. Under certain state laws low-level possession offenses are felonies that could have serious consequences under the federal immigration law, including mandatory deportation. A similar offense under federal law and other state laws is a misdemeanor and would have lesser immigration consequences. Some circuits hold that a state-law drug possession felony is not an aggravated felony for federal immigration purposes, while others hold to the contrary. The ABA has filed an amicus brief (2006 WL 1696178) on behalf of Lopez arguing that the case presents issues of non-uniformity in immigration law. “Congress is presumed to legislate with uniformity in mind. Immigration law uniformity is also grounded in the ‘uniform Rule of Naturalization’ clause of the U.S. Constitution. Applying the illicit trafficking aggravated felony provision to state-law possession offenses that are misdemeanors under either federal or state law raises non-uniformity problems. Immigration consequences may turn on the happenstance of which state law a non-citizen was convicted under. The doctrine of constitutional avoidance counsels that the statute be construed to avoid such problems.”

Further Reading: The New York Times has details on yesterday’s oral argument here and SCOTUSblog has the transcript of the oral argument here.

III. Malaysia International Shipping v. Sinochem

Question Presented:

Whether a district court must first conclusively establish jurisdiction before dismissing a suit on the ground of forum non conveniens?

Comment: This case involves parallel proceedings in China and the United States. Sinochem seized Malaysia International’s vessel in a Chinese port pursuant to a Chinese court order. Malaysia International filed suit in United States challenging the seizure of the vessel in China. The district court dismissed based on forum non conveniens without finding personal jurisdiction. The Third Circuit concluded that, while forum non conveniens is a non-merits ground for dismissal, the district court nonetheless should have determined whether personal jurisdiction existed prior to dismissing on forum non conveniens grounds because “the very nature and definition of forum non conveniens presumes that the court deciding this issue has valid jurisdiction … and venue.” The dissent argued that the majority decision “mandates that the District Court subject Sinochem to discovery and other proceedings in a forum which the District Court rightly regards as inappropriate.” Circuits are strongly divided on the question. Petitioner argues that “Commentators … uniformly recognize the importance of this issue due to its international implications, as well as its effects on judicial economy: Questions of forum non conveniens have long arisen with some regularity in maritime cases and the tremendous growth in international commerce and interdependence since World War II has produced a considerable variety of kinds of cases in which arguably a foreign court would be a more convenient forum.”

IV. Gonzalez v. Planned Parenthood

Question Presented:

Whether, notwithstanding Congress’s determination that a health exception was unnecessary to preserve the health of the mother, the Partial-Birth Abortion Ban Act of 2003 is invalid because it lacks a health exception or is otherwise unconstitutional on its face?

Comment: At least one brief by a religious coalition for reproductive choice (2006 WL 2736634) has relied on comparative experiences to argue against the Act. One would have thought that those who oppose these types of abortions would rely on comparative experiences in support of their position. It is possible, but unlikely, that one or more justices may rely on comparative experiences in this case. Justice Scalia in Roper and elsewhere has invited other justices who use comparative experiences to do so in abortion cases, and Justice Ginsburg in her ASIL annual speech indicated it would be appropriate to “look abroad for negative examples” on abortion.

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